Reznik v. Garaffo

Bay Avary Associates, LLC, a Massachusetts limited liability company engaged in commercial and residential real estate development, was *26selected by the Town of Sudbury from a group of competitive bidders to build the Frost Farm Village Condominiums (“Frost Farm”), a 44-unit condominium complex for moderate-income senior citizens. Bay Avary and the Town executed a ground lease of the Frost Farm site in July, 2001, and construction began thereafter. The project was plagued by successive legal and construction obstacles and resulting delays. Even after occupancy permits were issued, a number of unit owners complained about a host of post-construction problems ranging in severity from serious basement flooding to mismatched kitchen cabinet doors. The appendix on this appeal prepared by plaintiff-appellant Mark Reznik (“Reznik”) contains more than 60 pages of copies or duplicate copies of Sudbury newspaper articles, transcripts of Reznik’s electronic mail (“e-mail”) correspondence with a local reporter, and selected pages of pleadings filed by subcontractors or other Frost Farm residents in lawsuits unrelated to this one. Those materials underscore the climate of hostility between some residents and the Frost Farm developers, but they are not probative of Reznik’s far more straightforward claims.2

While Reznik’s amended complaint of December 16, 2004,3 excoriates the defendants for allegedly utilizing Frost Farm as a “golden opportunity” for “making money on elderly people” through extortion, “coercion, threats, blackmail, ill faith and scam,” Reznik’s lawsuit has little to do with the legitimate grievances of a few of his Frost Farm neighbors. Reznik’s complaint instead seeks an award of damages for interest on a 2001 pre-construction deposit he paid upon the execution of, and as required by, the purchase agreement for his Frost Farm condominium unit. The deposit was paid to and held by Bay Avary, not even named by Reznik as a party to this suit, and no interest on the deposit was contemplated in the purchase agreement. Yet Reznik alleges that he is entitled to interest on his deposit because the defendants intentionally misrepresented his unit’s occupancy date at the time the deposit was paid and deliberately delayed construction completion thereafter. However, neither the defendants, nor Bay Avary, could have orchestrated the series of construction setbacks which apparently occurred.4

Reznik also seeks recovery of the cost of a full basement in his unit, which was ordered and paid for pursuant to a purchase agreement attachment for unit extras or upgrades and “finishes” signed by Reznik’s wife, Helen, and *27defendant Avary, R.T.G., Inc. (“RTG”).5 Reznik failed in his attempt to negotiate a waiver of the basement cost by RTG prior to the Rezniks’ purchase of the unit, and now seeks to recover his payment for the full basement the Rezniks ordered and RTG constructed by charging that the defendants compelled him to order the upgrade by extortion, coercion, duress and unfair and deceptive practices in violation of G.L.c. 93A.

The actual contract signed by the Rezniks and concrete information about the progression of the Frost Farm project appear not in Reznik’s complaint, but in materials filed by the defendants in support of their Mass. R. Civ. R, Rule 12(b)(6), motion. Reznik has appealed, inter alia, the allowance of both the defendants’ dismissal motion and motion for monetary sanctions against him for commencing a frivolous, vexatious suit.

While the defendants’ eagerness to terminate Reznik’s harassment (see discussion, infra) is understandable, their efforts to do so fell short of the full procedural compliance necessary for a judgment in their favor at this initial litigation stage.

1. Mass. R. Civ. E, Rule 12(b) (6), Motion to Dismiss. Defendant Richard T. Garaffo (“Garaffo”) was served on January 10, 2005. He thus had until Monday, January 31, 2005, either to serve his answer, Mass. R. Civ R, Rule 12(a), or to serve a Mass. R. Civ R, Rule 12(b) motion, which would have tolled the time for filing a responsive pleading. Garaffo mailed his Rule 12(b) (6) motion to the trial court on January 31, 2005. The motion was received and docketed, and thus filed, on February 2, 2005. Mass. R. Civ. R, Rule 77(c). See also Barrett v. Lynn Ladder & Scaffolding Co., 1994 Mass. App. Div. 217, 218. Further, the motion was not effectively served by January 31, 2005. While service, unlike filing, is complete upon mailing, Mass. R. Civ. R, Rule 5(b), Richardson v. Foodmaster Supermarkets, Inc., 1998 Mass. App. Div. 49, 51, Garaffo did not mail the dismissal motion. He instead forwarded it on January 31, 2005 by Federal Express overnight delivery. No signature was required. A Federal Express tracking order evidences that the motion was in fact delivered to Reznik’s front door on February 1, 2005. However, such delivery did not satisfy Rule 5(b) requirements, which provide that service by delivery to a person like Reznik, who has no office, is accomplished by “leaving [the motion] at his dwelling or usual place of abode with some person of suitable age and discretion then residing therein.” While the trial court could have properly concluded that Reznik’s explanations for his *28alleged non-receipt of the delivered motion were less than credible,6 the record does not permit the determination that Garaffo effectively served his Rule 12(b) (6) motion by the January 31, 2005 responsive pleading deadline.

Conversely, the Rule 12(b) (6) motion was not untimely as filed by defendant RTG because Reznik elected not to serve RTG with process. In the absence of service, the Rule 12(a) twenty-day period for RTG’s filing of a responsible pleading never began to run.7 See Curly Customs, Inc. v. Pioneer Financial, 62 Mass. App. Ct. 92 (2004). Again, however, delivery of the motion did not comply with Rule 5(b).

Moreover, the defendants’ motion was not limited to the inadequacies of the complaint itself, but was predicated on significant additional material outside of the pleadings, including affidavits. See Orion Ins. Co. v. Shenker, 23 Mass. App. Ct. 754, 757 (1987). In such a case, a Rule 12 (b) (6) motion may be properly converted *29to one for a Mass. R. Civ. R, Rule 56, summary judgment "with notice to the opposing party and an opportunity to present additional responsive material. White v. Peabody Constr. Co., 386 Mass. 121, 127 (1982). While Reznik continued to file all manner of additional matters, relevant and otherwise, in support of other motions pending contemporaneously with the defendants’ dismissal motion, he filed nothing substantive in opposition to that motion. Compare The Stop & Shop Cos. v. Fisher, 387 Mass. 889, 892 (1983) (“A party may be held to have constructive notice that the court is treating a Rule 12(b) (6) motion as a motion for summary judgment when it has, itself, submitted extra-pleading material”); Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 n.4 (2004) (conversion of Rule 12(b) (6) motion unnecessary where plaintiff had notice of additional materials and relied on them in framing his complaint). There is no indication in the record that Reznik was notified of any Rule 56 conversion of the defendants’ dismissal motion, and the trial court specifically entered its order pursuant to Rule 12 (b) (6). Under these circumstances, the allowance of the defendants’ motion must be reviewed on the basis of Rule 12(b) (6) principles. Orion Ins. Co. PLC. v. Shenker, supra at 757-758.

A complaint “should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support” thereof. Brum v. Dartmouth, 44 Mass. App. Ct. 318, 321 (1998). While the defendants are correct in their contention that complaint “counts described as being for ‘extortion’ and for ‘coercion and duress’ do not state facts supporting any recognized civil cause of action in this Commonwealth,” Leventhal v. Dockser, 361 Mass. 894 (1972), Reznik’s complaint was not, strictly for Rule 12 (b) (6) purposes, limited to the specific relief or theory of recovery set forth therein.8 Fabiano v. Boston Redevelop. Auth., 49 Mass. App. Ct. 66, 71 (2000). Because all allegations in his complaint must be accepted as true for Rule 12(b) (6) review, Berkowitz v. President & Fellows of Harvard College, 58 Mass. App. Ct. 262, 270 (2003), and because a motion under that rule tests nothing more than whether a “bare silhouette of a cause of action” has been sketched, Coolidge Bk. & Tr. Co. v. First Ipswich Co., 9 Mass. App. Ct. 369, 371 (1980), Reznik’s complaint must be deemed marginally sufficient to advance a very rough outline of misrepresentation claims.9

For the foregoing reasons, the allowance of the defendants’ dismissal motion is reversed.10

*302. Motion for Sanctions. It is probable that, with appropriate, detailed affidavits and factually specific documentary evidence, the defendants may well succeed in pushing this action “over the summary judgment cliff’ when it is returned to the trial court. Wrightson v. Spaulding, 20 Mass. App. Ct. 70, 72 n.2 (1985). However, as the complaint is sufficient at this early procedural juncture to surmount the albeit extremely “minimal hurdle” of a Rule 12(b) (6) challenge, Bell v. Mazza, 394 Mass. 176, 184 (1985), the determination that the action was frivolous was premature. See U.S. Funding, Inc. of America v. Bank of Boston Corp., 28 Mass. App. Ct. 404, 408-409 (1990).11 The allowance of the defendants’ motion for sanctions is reversed.

We enter that order fully cognizant of the validity of the defendants’ contentions that Reznik was largely motivated in commencing this action by his personal animus towards the defendants, an irrelevant sentiment improperly reiterated throughout his filings in this case. It is also clear that Reznik appears to find expression for that sentiment in any procedural maneuver, however frivolous, that will increase the defendants’ attorney’s fees and litigation costs and thus redound to their financial detriment.12 Even beyond those considerations, the defendants make a compelling request for some relief from Reznik’s harassment. For a general description of his outrageous conduct, the defendants point to Reznik v. Friswell, 2003 Mass. App. Div. 43, wherein we characterized Reznik’s trial court filings in that case as “increasingly sarcastic, offensive and inappropriate, liberally laced with groundless vilifications of the personal character and professional integrity of trial court judges, FrisweU’s counsel and, eventually, even Friswell herself.” Despite a prior warning in that case from Friswell’s attorney to refrain from any direct contact with his client, Reznik admitted that he sent mail and made numerous telephone calls to Friswell’s home and place of business.13 The elderly defendant, then in ill health, was distressed and frightened by Reznik’s actions and the trial court dismissed his suit as a sanction for his misconduct. We vacated that dismissal because no prior court order had been issued against Reznik to refrain from the harassing conduct in question. There was, however, no question of the misconduct.

Reznik has expanded the scope of his misconduct in this case to include not just individual defendant Garaffo and his attorney, but also their family members. While there is not a scintilla of evidence to suggest that Garaffo’s wife had any business connection with the Frost Farm project or this lawsuit and while Reznik was aware at all times that Garaffo was represented by legal counsel, Reznik addressed an insulting *31and threatening letter purporting to be a G.Lc. 93A demand to both Mr. and Mrs. Gar-affo, and faxed the letter to their home. The defendants contend that Reznik has also made telephone calls to the Garaffo family at their home, resulting in a warning (s) by the Westwood Police,14 and has sent “threatening” communications to other RTG and Bay Avary principals. A copy of a letter also addressed by Reznik to the home of defendants’ counsel is included in the record. Counsel further indicates that Reznik placed a telephone call to his home on New Years Eve and spoke to counsel’s wife, leaving her as “unsettled” by the bizarre intrusion as any reasonable person would be.15 Given warnings and sanctions issued in previous cases, Reznik is deemed to know of the inexcusable impropriety of his direct contact with an opposing party represented by counsel. And circumstances should never arise to necessitate court orders prohibiting that which basic decency should instinctively prevent; namely, the more egregious conduct of contacting family members. That Reznik fully appreciates the harassing nature and effect of his actions is clear from his own statements. When Reznik, the plaintiff in this action with no office of his own and no attorney, received a single fax at his home from defendants’ counsel in reply to a fax Reznik had sent from his home, Reznik indignantly warned the defendants that the single reply fax constituted harassment, infliction of emotional distress and an invasion of his privacy [App. 368]. Reznik has aptly described the tenor of his own misconduct in this action. Therefore, the trial courts “no contact” order of March 11, 2005 is amended to prohibit Reznik’s contact not only with individual defendant Garaffo and his family members, but also the family members of defendants’ counsel. As amended, the order is affirmed. A dismissal of this action for any violation of this “no contact” order is within both the inherent authority of the trial court and the specific provisions of Mass. R. Civ. R, Rule 41(b) (2), see Reznik v. Friswell, supra, at 43.

Oddly, Reznik has included in the appendix [App. 92-93] a copy of a Superior Court order in Reznik v. Digimarc ID Systems (Sup. Ct. No. MICV 2003-02757), prohibiting him from serving any additional matters on the defendants in that case by facsimile transmission. As stated therein, facsimile transmission does not constitute service under Rule 5(b). What it can constitute, however, is a convenient and inexpensive method of harassment. Defendants’ counsel contends that Reznik continues to make “prolific use” of faxes directed to him and to others in his office. Copies of recent Reznik faxes, vulgar and childish in their groundless taunting,16 and grossly insulting, *32if not defamatory in content,17 have been provided to this Division by both parties. As Reznik has perverted this everyday mode of communication into still another vehicle for the abuse of the defendants and their counsel in this action, Reznik is hereby prohibited from sending any additional facsimile transmissions to defendants’ counsel or to anyone in his office. All communications, and the service of any pleading, notice, motion, or supporting or opposing material of any kind by either party shall be accomplished by U.S. mail.

Finally, even at this initial stage of the proceedings, Reznik’s filings are already replete with sarcastic, vile and baseless attacks on the personal and professional character of Garaffo, his counsel and trial court judges, past and present. That Reznik, once again, is well aware of the impropriety of such material is beyond question. In Reznik v. Digimarc ID Systems, to which he has referred us, Reznik was repeatedly warned by the Superior Court to stop “humiliating” himself by “abusing opposing counsel, the defendants and the court” by the inclusion of “immaterial, impertinent and scandalous matters and baseless allegations of wrongdoing” in both his pleadings and communications. (Order-Feb. 9, 2004). Pursuant to Mass. R. Civ. R, Rule 12(f), the Superior Court struck several of Reznik’s offending motions and warned that further sanctions, including dismissal, would be imposed for his additional misconduct.18 Those sanctions remain available to the trial court in this case if Reznik unwisely elects to continue abusing the privilege of conducting civil litigation.

3. Motion for Default. A default may be entered only against a party who has “failed to plead or otherwise defend.” Mass. R. Civ. E, Rule 55(a). The phrase “otherwise defend” “referís] to filings such as a motion to dismiss that defer the requirement to plead. ...” Curly Customs, Inc. v. Pioneer Financial, supra at 99. Given the defendants’ appearance in this action, their Rule 12(b)(6) motion, and their opposition to all of Reznik’s motions, there was no abuse of discretion in the trial court’s denial of Reznik’s motion to default the defendants. See Riley v. Davison Constr. Co., 381 Mass. 432, 442 (1980) (filing of counsel’s appearance and participation in discovery, even where no answer filed, warranted denial of default judgment request). Given our reversal of the allowance of their dismissal motion, the defendants may now seek an extension of time for filing an answer; and the allowance of such motion will rest within the broad discretion of the trial court.

4. Motion to Amend. Rule 15(a) permits a party to amend his pleading once as a matter of course. White v. Helmuth, 45 Mass. App. Ct. 634, 636 (1998). As noted, Reznik’s motion to amend was predicated on the false assertion that he was entitled to complaint amendment because he was seeking it for the first time. Given that assertion, there was no abuse of discretion in the denial of Reznik’s motion for a second amendment of his complaint. Reznik cannot sustain his appellate burden, Mancuso v. Kinchla, 60 Mass. App. Ct. 558, 572 (2004), of proving any abuse.

In addition to clarifying his claims, Reznik’s proposed second complaint amendment sought to add Bay Avary and Robert Yelton (“Yelton”), an officer of Bay Avary, *33as party defendants. Although, generally, amendments are liberally allowed, Bengar v. Clark Equip. Co., 401 Mass. 554, 556 (1988), a motion to amend to add a party may be denied upon a determination of unjustified delay, bad faith or undue prejudice. Barbosa v. Hopper Feeds, Inc., 404 Mass. 228, 233 (1988). The proposed addition of Robert Yelton who, like defendant Garaffo, is a corporate officer ordinarily shielded from personal liability may indeed be predicated on bad faith; but that determination has not been conclusively made at this juncture. We take judicial notice of our own records to state that Reznik has already filed at least one other action against Yelton and Bay Avary,19 and interests of fairness and judicial economy militate against the piecemeal litigation of Reznik’s Frost Farm claims. Further, there is the as yet unresolved question of the necessity of joining Helen Reznik as a party plaintiff. Therefore, based on these factors which were not before the trial court, we return Reznik’s motion to amend to the trial court for reconsideration together with the question of Helen Reznik’s joinder. In the circumstances of this case, the “preferable practice would be for [Reznik] ... to give the proposed new party [Yelton] notice of the motion to amend so that the new party would have the opportunity to file an opposition and request a hearing.” Srebnick v. Lo-Law Transit Mgm., Inc., 29 Mass. App. Ct. 45, 51 (1990). Any amendment of the complaint would relate back to the date of the commencement of this action. Perkins School for Blind v. Rate Setting Commission, 383 Mass. 825, 830 (1981).

5. Additional Motions. Reznik filed not one, but three successive motions, together with supporting and supplemental memoranda, for “clarification” of the order allowing the defendants’ motion for dismissal and sanctions. The motions demanded that the court’s handwritten decision be typed. The judge’s handwritten order was clear and legible20; and Reznik had no problem in identifying and addressing its contents in his motion to alter or amend the order, which Reznik filed after his first clarification motion, but before his second and third. There was no abuse of discretion in the consistent denials of Reznik’s repeated clarification motions.

Reznik also complains that the trial court restricted his post-dismissal filings to those pertaining to an appeal of the court’s orders. As a practical matter, as the court proceeded to rule on all of Reznik’s subsequent, often redundant motions, he can claim no actual prejudice from the court’s restriction.21

*34Finally, Reznik was not entitled to any findings of fact or rulings of law upon the court’s disposition of the defendants’ Rule 12(b)(6) motion. Reznik v. Friswell, supra, at n.3.

Accordingly, the allowance of the defendants’ motions for dismissal and sanctions is vacated, and the case is returned to the trial court for further proceedings consistent with this opinion.